Germany's highest civil court has held that the use of an unlicensed sample of Kraftwerk's 1977 track "Metall auf Metall" in a German hip hop song is lawful as a pastiche. The ruling has the potential to give more freedom with sampling but confirms that pastiche is not a catch-all defence.
Background
Kraftwerk are pioneers of electronic music and quintessentially Deutsch. They are renowned across the world and have been sampled countless times.
This particular dispute began after a two-second rhythm sequence from Kraftwerk's 1977 track "Metall auf Metall" was sampled by Moses Pelham and used for the beat in Sabrina Setlur's "Nur mir" in 1997.
The dispute has run for nearly 30 years, representing one of the longest running and most significant copyright disputes in European legal history.
Most recently, it involved a referral to the Court of Justice of the European Union (CJEU) on the meaning of "pastiche" as a defence to copyright infringement and has now reached a final ruling by the Bundesgerichtshof, Germany's highest civil court.
The Decision
In April 2026, the CJEU clarified the scope of the "pastiche" defence. It held that it is not a catch-all defence for any creative use of copyright material; rather, it covers creations that evoke one or more existing works whilst remaining noticeably different from them. Those creations must also use protected elements of the original work in a recognisable artistic or creative dialogue. It held that sampling can qualify as a pastiche when there is a recognisable creative engagement with the original material where those conditions are met.
The German court held that Pelham's sampling constituted an impairment of Kraftwerk's rights. However, applying the CJEU's guidelines, it held that the sample fell within the definition of "pastiche", as introduced into German law in June 2021, and was therefore not an infringement from that time onwards.
The court noted that Pelham had transferred an electronic music element into a different genre (hip hop), creating what it described as an artistic and creative dialogue, and that listeners familiar with the original could recognise the borrowed element - a key requirement under the CJEU framework.
The Upshot
The ruling is a landmark for EU copyright law. It is also significant for the music industry, and rightsholders and producers will undoubtedly feel very different about it.
The decision establishes that sampling can be lawful where the new work visibly and creatively engages with the source material, rather than merely copying it. It gives firmer legal footing to sample-based music production but makes it clear that the pastiche exception is not a blanket free pass to sample without a licence and will depend on a case-by-case assessment.
The UK has its own pastiche defence, permitting "fair dealing with a work for the purposes of caricature, parody or pastiche". However, post-Brexit, EU decisions are no longer binding on UK courts. Whilst they may nevertheless be persuasive, it ultimately remains to be seen whether the UK courts will follow suit (pun intended).
The pastiche defence is just that – a defence. Letting a court decide whether it applies can have significant financial and creative consequences. Producers should therefore still treat clearance as the lower risk route when sampling. For rightsholders, an unlicensed sample will not necessarily be carte blanche to issue proceedings in the EU and obtain an injunction and damages. Consideration should first be given as to whether the pastiche defence could apply.
